Summary
noting "[v]enue is not to be presumed" and reversing and remanding when "the present record is wholly insufficient to establish venue"
Summary of this case from Quinn v. StateOpinion
No. 27036.
April 2, 1928.
1. CRIMINAL LAW. Affidavit before justice of peace, charging crime, may be amended in circuit court; failure of affidavit before justice of peace, charging crime, to charge venue, when not demurred to, cannot be raised in Supreme Court for first time.
Affidavits before a justice of the peace charging crime are subject to amendment in the circuit court, and failure of the affidavit to charge venue, when not demurred to, cannot be raised in the Supreme Court for the first time.
2. CRIMINAL LAW. Indictment and information. Venue must be proved in order to convict defendant; in criminal prosecution venue of justice of peace must be proved on appeal in circuit court; failure to prove venue on appeal to circuit court from justice of peace requires reversal of conviction.
Venue must be proved in order to convict a defendant, and the venue of the justice of the peace must be proved on appeal in the circuit court. Failure to prove the venue requires a reversal of the case.
3. CRIMINAL LAW. In prosecution for removing tenant, that prosecuting witness lived in designated supervisor's district and that tenant worked on his place held not sufficient proof of venue; in prosecution for removing tenant, proof of venue must show tenant lived in district of justice of peace in question.
It is not sufficient proof of venue to prove that the prosecuting witness lived in a designated supervisor's district, and that a tenant worked on his place in the prosecution of a person for removing a tenant. The proof must show that the tenant lived in such justice of the peace's district. A person may own numbers of places situated in different jurisdictions.
APPEAL from circuit court of Madison county; HON.W.H. POTTER, Judge.
H.B. Greaves, for appellant.
James W. Cassedy, Jr., Assistant Attorney-General, for the state.
The prosecution in this case was begun in a justice of the peace court, when appellant was charged with unlawfully interfering with, enticing away, and knowingly employing or inducing Mrs. Emma Sims, a laborer or renter, who had contracted with affiant, etc. Appellant was convicted in the justice of the peace court and appealed to the circuit court, where he was again tried and convicted.
The affidavit did not allege that the offense was committed in the justice of the peace district of the justice of the peace before whom the affidavit was made, but this affidavit was not demurred to, and as it was subject to amendment, the failure of the affidavit to allege the proper venue cannot be raised here. But, in addition thereto, the proof in the case failed to prove the venue to be within any particular justice of the peace district, and this failure is fatal to the conviction of the defendant.
We have repeatedly held that venue must be proved as it is jurisdictional and can be raised in this court for the first time.
The only proof as to venue, given by the prosecuting witness, the alleged employer or landlord, is that he lived in the Fifth supervisor's district of Madison county, and that H. Greenwalt, before whom the prosecution was instituted, was the justice of the peace of that district. It was further proved that Mrs. Sims, the alleged tenant, lived on the place of J.S. Cain, the prosecuting witness; but there was no proof that Cain had only one place or plantation, and there was no proof that the tenant lived in district No. 5.
It is a familiar rule that in criminal cases the state must prove every material allegation of the affidavit or indictment, by competent evidence, and beyond every reasonable doubt.
Venue is not to be presumed, but must be proved; and, therefore, the present record is wholly insufficient to establish venue, and for this reason the judgment of conviction must be reversed. It is, therefore, unnecessary to decide now whether the proof in the record, other than as to venue, is sufficient to sustain the conviction.
Reversed and remanded.